J-S27017-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KYLE DICKERSON
Appellant No. 1120 EDA 2014
Appeal from the PCRA Order entered February 24, 2014
In the Court of Common Pleas of Lehigh County
Criminal Division at No: CP-39-CR-0002659-2010
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY STABILE, J.: FILED JULY 20, 2015
Appellant, Kyle Dickerson, appeals pro se from the February 24, 2014
order entered in the Court of Common Pleas of Lehigh County, denying as
untimely his petition for collateral relief filed pursuant to the Post Conviction
Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Following review, we affirm.
On direct appeal, this Court adopted the trial court’s comprehensive
summary of evidence presented at the trial in this case. Commonwealth v.
Dickerson, K., 1073 EDA 2011, unpublished memorandum at 1-7 (Pa.
Super. filed March 16, 2012). For purposes of this appeal, it is sufficient to
know that on January 21, 2011, a jury found Appellant guilty of first degree
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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murder, robbery, burglary, theft by unlawful taking, receiving stolen
property, and criminal conspiracy to commit robbery,[1] all stemming from
events that occurred in the early morning hours of March 15, 2010. On
February 23, 2011, the trial court sentenced Appellant to a term of life
imprisonment without possibility of parole for the murder conviction and an
aggregate consecutive sentence for the remaining convictions. The trial
court denied Appellant’s post-sentence motions on March 17, 2011.
Appellant filed a direct appeal to this Court raising sufficiency and
weight of the evidence issues and alleging error for denying a pre-trial
motion to exclude expert fingerprint testimony and schedule a Frye
hearing.2 This Court affirmed Appellant’s judgment of sentence on March
16, 2012. No petition for allowance of appeal was filed and Appellant’s
judgment of sentence became final on April 15, 2012.
Appellant filed a pro se PCRA petition on October 18, 2013. The PCRA
court appointed counsel who filed a Finley3 no-merit letter after reviewing
the file and corresponding with Appellant. In the no-merit letter, counsel
explained that Appellant failed to allege or prove any exception to the PCRA
timeliness requirement. The PCRA court granted counsel’s request to
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1
18 Pa.C.S.A. §§ 2502(a), 3701, 3502, 3921, 3925 and 903, respectively.
2
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
3
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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withdraw and Appellant proceeded pro se from that point. The PCRA court
conducted a hearing on February 19, 2014, during which Appellant testified
as did Steven Mills and Matthew Potts, the two lawyers who represented
Appellant at trial and on direct appeal. Appellant cross-examined both
attorneys. On February 24, 2014, the PCRA court dismissed Appellant’s
petition as untimely, noting Appellant failed to prove a timeliness exception.
This timely pro se appeal followed.
Appellant presents one issue for our consideration:
Did the PCRA court error [sic] by denying Appellant’s first PCRA
petition as untimely by unreasonably applying the due diligence
standard to an incarcerated indigent defendant who was
abandoned by appellate counsel on direct appeal[?]
Appellant’s Brief at 4.
As this Court recently explained:
In PCRA appeals, our scope of review “is limited to the
findings of the PCRA court and the evidence on the record of the
PCRA court’s hearing, viewed in the light most favorable to the
prevailing party.” Commonwealth v. Sam, 597 Pa. 523, 952
A.2d 565, 573 (2008) (internal quotation omitted). Because
most PCRA appeals involve questions of fact and law, we employ
a mixed standard of review. Commonwealth v. Pitts, 603 Pa.
1, 981 A.2d 875, 878 (2009). We defer to the PCRA court’s
factual findings and credibility determinations supported by the
record. Commonwealth v. Henkel, 90 A.3d 16, 20 (Pa. Super.
2014) (en banc). In contrast, we review the PCRA court’s legal
conclusions de novo. Id.
Commonwealth v. Reyes-Rodriguez, 111 A.3d 775, 779 (Pa. Super.
2015 (en banc).
The PCRA court made the following factual findings:
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[Appellant] presented to this [c]ourt a letter authored by
his trial counsel on March 23, 2012, informing [Appellant] of the
Superior Court’s denial of his appeal and advising [Appellant]
that the only procedural remedy available to him was to file a
Petition for Allocatur to the Supreme Court of Pennsylvania.
Trial counsel ended the letter by requesting [Appellant’s] input in
this matter.[4] Additionally, [Appellant] then presented to this
[c]ourt an unauthenticated, purported handwritten letter by
[Appellant] dated March 25, 2012, in which he requests that his
trial counsel file a Petition for Allocatur with the Supreme Court
of Pennsylvania.[5] This [c]ourt takes exception to this letter, as
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4
The text of the March 23, 2012 letter from trial counsel to Appellant reads
as follows:
Dear Kyle:
Enclosed you will find a copy of the Superior Court Opinion
denying your Appeal. It was filed with the Superior Court of
Pennsylvania on March 16, 2012. Also I am in receipt of your
last correspondence. You said you are in the process of getting
Affidavits together regarding witnesses who are changing their
testimony. If that is in fact true, please let me know. The only
procedural remedy you have now would be to Petition for
Allocatur to the Supreme Court of Pennsylvania and me [sic] and
Matt are both in agreement that they would not grant it. Please
let us know your thoughts on the matter.
If you have any questions or concerns, please do hesitate
to write to me.
Very truly yours,
/s/ Steve Mills
Steven R. Mills, Esquire
Notes of Testimony, PCRA Hearing, 2/19/14, Exhibit D-1.
5
The handwritten letter from Appellant bearing the date March 25, 2012,
reads verbatim as follows:
Mr. Steven R. Mills,
I’m writing in regards to your last correspondence. Like I
told you in my previous letters I am in possession of a affidaviat
from a witness who wishes to recant his/her testimony. So
please inform me of what I should do with this newly discovered
(Footnote Continued Next Page)
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common sense suggests that it was fabricated by [Appellant]
solely for the purpose of this hearing. First, this [c]ourt notes
the dates on the correspondence. This [c]ourt finds it highly
improbable that [Appellant] received at state prison a letter
dated and mailed on March 23, 2012, and had time to respond
to same on March 25, 2012. Quite frankly, this is actually
inconceivable to the [c]ourt. In addition, [Appellant] failed to
present this [c]ourt with any proof of mailing. Also, defense
counsel Steven Mills and Matthew Potts both testified that they
never received [Appellant’s] alleged correspondence of March
25, 2012. Furthermore, even [Appellant] admitted that Attorney
Mills always wrote back to [Appellant] upon receipt of any
correspondence from him. Attorney Mills did not respond to the
phantom letter. Finally, [Appellant] did not present this letter of
March 25, 2102, to [PCRA counsel Charles] Banta when he was
asked to furnish Attorney Banta with evidence of an exception to
the timeliness requirement.
Nevertheless, even assuming, arguendo, that the letter is
legitimate, this [c]ourt finds that [Appellant] did not exercise
due diligence in pursuing or perfecting his appeal to the
Supreme Court of Pennsylvania. In fact, [Appellant] did nothing
for approximately 18 months with regard to his case. A review
of the file of the Clerk of Courts – Criminal Division reveals three
(3) letters written by [Appellant] to the Clerk of Courts. The first
letter was dated February 22, 2012, in which [Appellant]
_______________________
(Footnote Continued)
evidence. Also I’ve been writing you and Mr. Potts about the
status of my appeals. I still haven’t received my brief from my
direct let alone the brief for the Superior or the Supreme. In
your letter you said that the only remedy I have left is Allocatur
to the Supreme. I don’t know specificaly what that is but please
file it anyway. I want to exaust any and every remedy at my
disposal. I don’t know what issues you and or Matt raised on my
appeal but I have my own findings that I wish to include and so I
ask that you and or Matt start to contact me so that my appeals
be done sufficiently and collectively.
Thank you for your time.
Truly,
/s/ Kyle C. Dickerson
Notes of Testimony, PCRA Hearing, 2/19/14, Exhibit D-2.
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inquired as to the status of his Superior Court appeal. In
response to his inquiry, the Clerk of Courts sent to [Appellant] a
copy of the docket for his matter. Then, one year and five
months later, on August 8, 2013, [Appellant] inquired of the
Clerk of Courts the status of his appeal to the Supreme Court of
Pennsylvania. Three weeks later, on August 29, 2013,
[Appellant] again wrote to the Clerk of Courts inquiring about an
appeal to the Supreme Court of Pennsylvania. This [c]ourt finds
that [Appellant’s] lack of action for approximately one year and
five months belies the fact that he never requested his counsel
to file a Petition for Allocatur, as well as demonstrates a
complete lack of due diligence. Consequently, [Appellant] has
failed to carry his burden.
PCRA Court Opinion, 2/24/14, at 3-4 n.8 (references to exhibits omitted)
(emphasis in original).
Our review leads us to conclude that the PCRA court’s factual findings
and credibility determinations are supported by the record. Therefore, we
defer to them. Reyes-Rodriguez, 111 A.3d at 779 (citing Henkel, 90 A.3d
at 20). As for the legal determinations, we shall review them de novo. Id.
This Court recently reiterated:
As a prefatory matter, the timeliness of a PCRA petition is
a jurisdictional requisite. Commonwealth v. Robinson, 12
A.3d 477 (Pa. Super. 2011). A PCRA petition, including a second
or subsequent petition, shall be filed within one year of the date
the underlying judgment becomes final. 42 Pa.C.S.A.
§ 9545(b)(1). A judgment is deemed final “at the conclusion of
direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of
Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S.A. § 9545(b)(3).
The three statutory exceptions to the timeliness provisions
in the PCRA allow for very limited circumstances under which the
late filing of a petition will be excused. 42 Pa.C.S.A.
§ 9545(b)(1). To invoke an exception, a petition must allege
and the petitioner must prove:
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(i) the failure to raise the claim previously was the result
of interference by government officials with the
presentation of the claim in violation of the Constitution or
laws of this Commonwealth or the Constitution or laws of
the United States;
(ii) the facts upon which the claim is predicated were
unknown to the petitioner and could not have been
ascertained by the exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or
the Supreme Court of Pennsylvania after the time period
provided in this section and has been held by that court to
apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i)-(iii). Additionally, a PCRA
petitioner must present his claimed exception within sixty days
of the date the claim first could have been presented. 42
Pa.C.S.A. § 9545(b)(2). “As such, when a PCRA petition is not
filed within one year of the expiration of direct review, or not
eligible for one of the three limited exceptions, or entitled to one
of the exceptions, but not filed within 60 days of the date that
the claim could have been first brought, the [PCRA] court has no
power to address the substantive merits of a petitioner's PCRA
claims.” Commonwealth v. Gamboa–Taylor, 562 Pa. 70, 77,
753 A.2d 780, 783 (2000).
Commonwealth v. Brown, 111 A.3d 171, 175-76 (Pa. Super. 2015)
(emphasis in original).
Appellant’s judgment became final on April 15, 2012, thirty days after
this Court affirmed his judgment of sentence and the date on which his time
expired for seeking discretionary review in our Supreme Court. Therefore,
Appellant was required to file his PCRA petition on or before April 15, 2013.
His PCRA petition filed on October 18, 2013 was untimely on its face so we
must ascertain whether any § 9545(b)(1) exception applies. Appellant has
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not alleged the applicability of either § 9545(b)(1)(i) or (iii). Therefore, our
review is focused on whether he can successfully rely on § 9545(b)(1)(ii) to
overcome the PCRA’s time limitations.
In Brown, this court considered an appellant’s contention that
§ 9545(b)(1)(ii) overcame the PCRA’s time limitations. The Court explained:
The timeliness exception set forth in Section 9545(b)(1)(ii)
requires a petitioner to demonstrate he did not know the facts
upon which he based his petition and could not have learned
those facts earlier by the exercise of due diligence.
Commonwealth v. Bennett, 593 Pa. 382, 395, 930 A.2d 1264,
1271 (2007). Due diligence demands that the petitioner take
reasonable steps to protect his own interests. Commonwealth
v. Carr, 768 A.2d 1164, 1168 (Pa. Super. 2001). A petitioner
must explain why he could not have learned the new fact(s)
earlier with the exercise of due diligence. Commonwealth v.
Breakiron, 566 Pa. 323, 330–31, 781 A.2d 94, 98 (2001);
Commonwealth v. Monaco, 996 A.2d 1076, 1080 (Pa. Super.
2010), appeal denied, 610 Pa. 607, 20 A.3d 1210 (2011). This
rule is strictly enforced. Id.
Id. at 176.
Unlike Brown, in which appellant advanced an argument based on
“after-discovered evidence,” Appellant here argues simply that, despite his
due diligence, he was unaware his counsel did not petition our Supreme
Court for allocatur. Appellant suggests “a court should look to the
circumstances surrounding a defendant[’]s circumstances to inquire whether
or not more could have been done to discover whatever proffer is being
presented.” Appellant’s Brief at 8. He explains his own circumstances as
having been and presently being incarcerated and, as such, “by law an
indigent litigant.” Id. He contends telephone calls to attorneys are
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prohibited at SCI Smithfield, where he is incarcerated, and his mother was
unable to assist him because she was ill. Id. at 10. He asserts he alerted
the courts when he became aware his counsel abandoned him. Id.
As explained in Brown, it is incumbent on Appellant to demonstrate
he took reasonable steps to protect his own interests and to explain why he
could not have learned sooner, with the exercise of due diligence, that his
counsel did not file a petition for allocatur. See Brown, 111 A.3d at 176.
Appellant has not done so.
The record reflects that Appellant wrote to the clerk of courts in
February of 2012, inquiring about the status of his direct appeal. The clerk
responded by sending a copy of the docket sheet to Appellant. As of
February 2012, Appellant’s direct appeal was still pending before this Court.
This Court’s decision affirming Appellant’s judgment of sentence was filed on
March 16, 2012. A week later, Appellant’s counsel wrote to Appellant,
advising him of this Court’s decision and the sole remaining procedural
remedy of filing a petition for allocatur, an option counsel predicted to be
unsuccessful. See n.4, supra. Despite the invitation to share his thoughts
with counsel, Appellant did not take any action until August 2013 when he
again wrote to the clerk of courts, inquiring into the status of his appeals. 6
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6
Despite Appellant’s claim at the PCRA hearing that he wrote a letter to
counsel on March 25, 2012, see n.5, Appellant does not repeat that
assertion in his brief filed with this Court. We note the PCRA court rejected
(Footnote Continued Next Page)
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In what can be viewed as a continued show of gamesmanship, Appellant
concludes the argument section of his brief filed with this Court by asking,
“After all, did counsel know if Appellant actually received the letter informing
him of the results of the appeal?” Appellant’s Brief at 12. While perhaps
intended as a rhetorical question to this Court, Appellant ignores his
representation under oath to the PCRA court that he wrote his March 25,
2012 letter in response to counsel’s March 23, 2012 letter. See Notes of
Testimony, 2/19/14, at 11-12 and Exhibit D-1 (see n.5, supra).
By virtue of his February 2012 inquiry to the clerk of courts, Appellant
demonstrated his ability to inquire about the status of his appeal. He
ignored the invitation from counsel to provide his thoughts following this
Court’s affirmance of his judgment of sentence and failed to produce any
evidence of a request that they file a petition for allocatur. When appointed
PCRA counsel asked Appellant for information to support an exception to the
PCRA’s one-year time bar, Appellant “failed to give [PCRA counsel] any basis
for pursuing one of the exceptions.” Petition to Withdraw as Counsel,
12/16/13, Exhibit A at 1-2.
Appellant contends he was abandoned by his trial counsel, counsel
who represented him from his preliminary hearing through the conclusion of
his direct appeal, and who invited input from him on proceeding beyond this
_______________________
(Footnote Continued)
the March 25, 2012 letter as fabricated for purposes of the PCRA hearing.
PCRA Court Opinion, 2/24/14, at n. 8.
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Court’s ruling. When reviewing this record to determine whether Appellant
exercised due diligence to excuse an untimely PCRA petition, we conclude it
was Appellant, not counsel, who abandoned his efforts both to pursue
allocatur and, more importantly for purposes of this appeal, a timely claim
for PCRA relief. Because Appellant did not exercise due diligence, he is not
entitled to an exception to the PCRA’s timeliness requirements.
Appellant’s PCRA petition was untimely on its face and he has failed to
prove an exception to the PCRA’s time bar. Therefore, we affirm the PCRA
court’s order dismissing Appellant’s petition as untimely.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2015
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